Miller v. State

267 S.W.3d 32 (2008)

Gary Lloyd MILLER, Appellant,
v.
The STATE of Texas.

No. PD-0168-08.

Court of Criminal Appeals of Texas.

April 2, 2008.

Donald W. Bankston, Richmond, TX, for Appellant.

Chad Bridges, Asst. District Atty., Richmond, Matthew Paul, State's Atty., Austin, for State.

OPINION

PER CURIAM.

A jury convicted Appellant of aggravated assault and assessed punishment at confinement for forty years. The Court of Appeals affirmed the conviction on March 29, 2007. Miller v. State, No. 14-06-00224-CR, 2007 WL 925718 (Houston [14th], March 29, 2007). On May 29, 2007, Appellant timely filed his petition for discretionary review in the Court of Appeals. See Tex.R.App.P. 68.2. On June 14, 2007, the Court of Appeals withdrew its opinion, but failed to issue another opinion in its place. On December 13, 2007, the Court of Appeals issued another opinion, again affirming the conviction. Miller v. State, No. 14-06-00224-CR, 2007 WL 4340560 (Houston [14th], December 13, 2007).

The Court of Appeals' opinion issued on December 13, 2007, was untimely under rule 50 because it was issued more than 30 days after Appellant's petition for discretionary review had been filed. See Parsons v. State, 187 S.W.3d 385 (Tex.Crim. App.2005); Ex parte Brashear, 985 S.W.2d 460 (Tex.Crim.App.1998); Garza v. State, 896 S.W.2d 192 (Tex.Cr.App.1995). Accordingly, the court had no jurisdiction to issue that opinion. Therefore, the Court of Appeals' opinion issued on December 13, 2007, is ordered withdrawn, and the original judgment and opinion of the Court of Appeals that issued on March 29, 2007, are reinstated. With this understanding, Appellant's original petition for discretionary review is refused.